Jackson and Davy were charged with first degree murder following the killing of Jackson's employer. Jackson believed that the victim, with whom he had a homosexual relationship, had brought in a new employee to take his place. On the night of the murder, Davy drove Jackson to the victim's antique shop. According to Jackson, Davy never left the car and was unaware of what happened in the shop. Jackson admitted to entering the shop, losing control and striking the victim with a hammer.
Davy testified that Jackson talked on the way to the shop about killing the victim, although Davy took this to be a joke. Jackson got out of the car carrying a hammer, balaclava and gloves, and ordered Davy to follow him. Jackson entered the shop and Davy remained outside near the door where he heard loud voices and noises, suggesting that someone was getting hit. Davy became frightened and ran down the driveway toward the car. Jackson ran after him, hit him and forced him to return to the shop. He then told Davy to retrieve the cash box.
The Crown's theory was that Jackson and Davy both entered the shop and both participated fully in the attacks as well as the robbery. The trial judge charged the jury on both murder and manslaughter. He set out a number of plausible scenarios but in none of them was it suggested that the accused might be guilty of manslaughter. Rather, the trial judge expressed the opinion that this was unlikely. The jury found Jackson guilty of first degree murder and Davy of second degree murder. The Court of Appeal set aside Davy's conviction and directed a new trial on the ground that the trial judge did not adequately instruct the jury as to the accused's potential liability for manslaughter under ss.21(1) and 21(2) of the Criminal Code.
- What principles govern a conviction for manslaughter?
- Did the trial judge err in his instructions to the jury as regards manslaughter?
McLachlin, writing for the majority, held that a person who aids and abets another in the offence of murder can be guilty of that offence under s.21(1)(b) and (c) of the Code if he possesses the requisite mens rea for murder. Where the aider and abettor does not have the mens rea required for murder, he may be guilty of the lesser offence of manslaughter if he possesses the requisite mens rea for that offence. Unlawful act manslaughter under s.21(1)(b) and (c) does not require a subjective appreciation of the consequences of the act; the test is objective. As long as the unlawful act is inherently dangerous and harm to another which is neither trivial nor transitory is its foreseeable consequence, the resultant death amounts to manslaughter. A person may thus be convicted of manslaughter who aids and abets another person in the offence of murder, where a reasonable person in all the circumstances would have appreciated that bodily harm was the foreseeable consequence of the dangerous act which was being undertaken.
A person can be convicted of manslaughter if they do not possess the requisite mens rea for murder, but do have the requisite mens rea for manslaughter (an objective test under Creighton).